L'Order no. 2021-1247 of 29 September 2021 has just transposed two European directives aimed at modernising the legal framework for consumer protection when purchasing connected products and digital content and services. The aim is to provide consumers with greater security in the digital sector and to help reduce the environmental footprint of digital technology by making goods more sustainable and encouraging their more virtuous use.

Its main contribution is the creation of a legal guarantee of conformity :

• on digital products, with the exception of certain services such as gambling, financial services and administrative documents;
• for contracts concluded between professionals and consumers as well as those concluded between professionals and non-professionals;
• as long as they are "for consideration", whatever the remuneration model, such as a benefit received by the professional instead of or in addition to a price, for example the use of the consumer's personal data.

Conformity" will be determined either according to the requirements set out in the contract or according to objective requirements that are legitimately expected by the consumer, such as the durability of a good.

In the event of a lack of conformity, the supplier must bring the service or digital good into conformity (by repairing or replacing it), at no cost or major inconvenience and within a reasonable period of time, which may not exceed 30 days. Failing this, the consumer is entitled to a reduction in the price or rescission of the contract.

The duration of this guarantee for goods is two years, with a presumption of anteriority of the defect (burden of proof in favour of the consumer) of two years as well. These periods are extended in the case of the continuous supply of digital content and services (whether or not the goods are sold) to the period during which the said content or services are supplied.

Failure to comply with these provisions or bad faith in their implementation may result in a further civil penalty being imposed on the professional concerned.

What's more, the ordinance enshrines a certain number of rights :

• the right to software updates necessary to maintain the conformity of the product,
• the right to refuse any subsequent modification of the digital elements, provided that this modification goes beyond the contractual provisions and is not necessary to maintain the conformity of the goods,
• the right to recover the content used in the event of termination of the contract.

And finally.., the ordinance extends to these contracts for the supply of digital content or services :

• certain provisions applicable to contracts for electronic communications services, namely contractual information, a two-year maximum commitment period for consumers and a maximum notice period of ten days when the consumer has the right to terminate the contract;

• obligations relating to consumer information, in particular on prices (including benefits received by the trader instead of or in addition to a price), and the content of general terms and conditions of sale;
• administrative sanctions applicable to consumer law.

These new provisions apply from 1^er January 2022 to contracts concluded on or after that date and to any contract for the supply of digital content or services.